Shabbat Parashat Vayeshev| 5766
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Question: I went to a private beach with friends during off-season, and the proprietor told us that the area was for men only. We paid 70 shekelsfor the whole day. After two hours of swimming, a group of women arrived. We left the water and went to find out what was happening. The proprietor denied having said it was a separate beach (I know he was lying). Instead of apologizing, he angrily returned our money in full, which we had not demanded, and told us to leave. Do I have to find a way to return part of the money, corresponding to the amount of time we enjoyed ourselves?
Answer: This question involves many, complicated halachic issues. In this forum, we can only outline the basis for our ruling. Our analysis assumes your description of the events, as you need to know what to do from your perspective, and this does not constitute a ruling of a din Torah.
Certainly your agreement to pay was a mekach taut (a transaction based on misrepresentation) and does not bind you. However, even without an agreement, when one uses another’s property for his benefit, it sometimes obligates him to pay. Your presence at the beach did not cause the proprietor loss, and there is a concept that one who benefits from his friend’s property without causing him loss is exempt from paying (Shulchan Aruch, Choshen Mishpat 363:6). However, since the proprietor clearly disallows use of his beach without payment and since you agreed to pay for its use, there is logic to expect you to pay for the enjoyment you received (based on ibid. and ibid.:8). How to determine how much value to attribute to those two hours and how to factor in the upsetting circumstances of having to abruptly leave the beach are subjective and you can evaluate it better than we. The subsequent unpleasantness in the office does not factor in, because it occurred after the possible obligation took hold, just as the trouble of ajudication is not factored in.
The next question is whether or not the return of the money was a valid mechila (relinquishing of rights) or a present. (We are working on your assumption that the person you dealt with was the proprietor; otherwise, it is even less clear that mechila under these circumstances would be valid.) The Rama (CM 333:8) brings the suggestion of Rabbeinu Yerucham (neither seem certain on the matter) that mechila outof anger is invalid, as it is not done in a thought-out manner. From halachic discussion on the matter it appears that the halacha depends on the particulars of the case (see Pitchei Teshuva, ad loc.:17). In our case, mechila occurred with an action (see Shut Maharim 38) by someone who figured that he would not be able to get the money back. Also, despite his anger, the proprietor probably knew that, after deceiving you, the honorable thing was to refund all the money. Therefore, there is a strong case for assuming that this angry mechila was valid.
Even if you “owe” the money, the story is not simple. The K’tzot Hachoshen (104:2) says that when one owes money, but the creditor has not asked for it, there is no practical obligation to pay. Admittedly, some disagree (Netivot Hamishpat, ad loc.) and his logic does not seem to apply to a case where the creditor cannot ask for the money (i.e. he doesn’t have contact information). However, even if we say that the mechila is invalid, it just means that he can reverse his refusal to receive payment. The status quo, though, is that until then, one is not obligated to pay. Thus, you may be able to rely on the likelihood that he has not actively decided that he desires payment. Since contacting him might ignite hard feelings, it is not necessarily a good idea to try to find out.
When one is holding someone else’s money, he does not have to go to the other person’s place to return it unless the money came to him as a favor or through a promise to pay (compare Shulchan Aruch, CM 74:1 & 273:1-2 and see S’ma 74:1). Therefore, you can at least wait until you pass by the beach again.
Due to a combination of factors we mentioned (and a couple, possible others which we omitted), we do not feel that you are required to make efforts to return the money.
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